Labor Law Outline
Fall 2004
I.
History Overview
a. Until the 19th Century, work wasn’t based on freely bargained employment
relationships. Rather, English law was based on the domestic relationships of
master & servant growing out of the servant’s relationship in the master’s
household.
b. In the Federal Period, labor market was mixture of free & paid labor; status based
work.
c. The Rise of the Factory System after the Civil War
i. Free Wage Labor
1. Contractually based relationships
2. more specialized division of labor
ii. Consequences
1. erosion of the need for craft skills – appropriated by machines
2. growth in the scale of manufacturing enterprises – loss of the
intimacy of the antebellum shop
3. change in the composition of the working force
a. supervisory positions were white males, but workers were
children, immigrants
4. employers had unilateral power to make and enforce rules – carte
blanche.
d. Rise of the Labor Movement after the Civil War
i. Less powerful unions formed and died with economic rises & depression
until AFL formed under leadership of Samuel Gompers in 1886.
1. AFL Philosophy
a. “pure wage consciousness”
b. relied on economic power
c. not so radical, accepted idea that labor was commodity to
be sold on a market, but that best way for the market to
work was for the collective to organize.
d. Business union – want to maximize the return from the
perspective of the workers.
e. CIO rival develops in the 30s
2. Also, IWW (Wobblies)
a. Radical Movement
i. Wanted to completely change capitalist system,
have system of worker control
3. Knights of Labor fighting for 60 hour work week
a. At high mark 4 million belonged
4. Also, the company union
e. Judicial Intervention
i. Hostility to union activities
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1. unions regarded as criminal conspiracies – illegal deprivation of
employer’s property or interference with contracts.
a. Narrowed use when courts required employer show union
was guilty of either an illegal purpose or the use of an
illegal means (violence).
2. Courts accepted that employees would be permitted to strike for
their wages. Needed another justification.
3. Vegelahn v. Gunter
a. Famous common law case – Mass. (1896)
b. TRO (injunction pendente lite) issued restraining union
members from interfering with P’s business by patrolling
sidewalk or street in front or around business premises to
prevent scabs from entering.
c. Ds conspired to prevent Ps from getting workmen, from
carrying on business until adopted schedule of business
agreeable to the union.
d. Opinion:
i. Allen: patrol was unlawful interference with the
rights of employer and employed;
- Employer has right to engage all persons
who are willing to work for him at such
prices as may be mutually agreed upon.
- Employed or seeking employment have
corresponding right to enter into or remain
in the employment of any person willing to
employ them.
- Intimidation not limited to threats of
violence or physical injury to persons or
property; includes persuasion.
ii. Holmes’s Dissent: Picket line isn’t automatically
threatening; workers publicizing their dispute with
management. Shouldn’t be unlawful to do in a
group what’s lawful for one man to do alone.
e. Analysis: look at the OBJECTIVE then MEANS.
4. Yellow Dog Contracts: employee agrees not to join a union.
a. Courts would issue injunctions to prevent breaking these
contracts.
II.
Anti-Trust Legislation
a. Sherman Act (1890)
i. 1890: Congress declared unlawful “every contract, combination in the
form of trust or otherwise, or conspiracy, in restraint of trust or otherwise,
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or conspiracy, in restraint of trade or commerce among the several states
or with foreign nations.”
1. violations punishable as federal crimes, AG authorized to instituted
injunction proceedings, and persons injured in the course of
business given right to sue civilly for treble damages.
2. objective was elimination of agreements between manufacturers or
suppliers to fix prices or regulate the supply of goods, but applied
more often to labor unions than to business corporations.
3. Held could apply to labor unions in Loewe v. Lawlor.
a. Loewe v. Lawlor (Danbury Hatters)
i. Organizers unhappy b/c hatters weren’t union shop;
other unionized hatters were saying would ununionize if didn’t organize.
ii. Boycott organized with retailers.
iii. Loewe came up with idea to sue the workers with
homes under Sherman act for treble damages.
iv. Boycott said to interfere with P’s production of hats
& distribution in interstate commerce.
v. Ds combined to prevent Ps from manufacturing
articles intended for transportation in interstate
commerce; Ps prevail.
b. Clayton Act (1914)
i. Congress: shouldn’t be using Sherman Act to attack labor unions, but
some loose language in there to allow hostile courts to weasel out of it.
1. Had been hailed by labor as a savior, but ended up being an
agony.
ii. States passed mini-Clayton acts. (?)
1. Sec. 6:
a. Typical objectives of labor organizations are legit
b. Anti-trust laws don’t forbid existence of labor orgs or
prevent them from carrying out their objectives.
c. That the labor of a human being is not a commodity or
article of commerce.
2. Sec. 20:
a. Imposed limitations power of courts to issue injunctions in
labor disputes.
i. “no restraining order or injunction shall be
granted by any court of the United States, or a
judge or the judges thereof, in any case between an
employer and employees…involving, or growing
out of, a dispute concerning terms or conditions of
employment, unless necessary to prevent irreparable
injury to property or to a property right…for which
there is no adequate remedy at law….”
iii. Duplex Printing v. Deering:
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1. SCOTUS, 1921: Court interprets Sec. 20 to apply only to disputes
between employer and its own employees. Courts can issue
injunctions to prevent secondary boycotts.
2. Union’s actions interfered with interstate commerce – under
Sherman Act could have been enjoined. BUT what about Clayton
Act? But Court concluded Sec. 6 doesn’t legitimize acts that
would be illegal under Sherman Act.
c. Norris-LaGuardia Act (1932)
i. Closes the gaps.
ii. No court of the US shall have jurisdiction to issue any restraining order or
temporary or permanent injunction in a case involving or growing out of a
labor dispute except (in Sec. 1)
iii. Policy (in Sec. 2)
1. The individual unorganized worker is commonly helpless to
exercise actual liberty of contract and to protect his freedom of
labor…it is necessary that he have full freedom of association,
self-organization, and designation of representatives of his own
choosing, to negotiate the terms and conditions of his employment,
and that he shall be free from the interference, restraint, or
coercion of employers…for the purpose of collective bargaining.”
iv. Outlaws the yellow dog K.
v. Sect. 13(c): expands the term of labor disputes to include secondary
disputes – gets to the heart of Duplex printing.
1. US v. Hutcheson
a. SCOTUS (1941)
b. Two unions fighting over jobs in St. Louis; FDR’s AG goes
after union on strike.
c. Court: if can’t enjoin someone for an activity under the
law, then surely can’t be prosecuted for the activity (would
make the law an ass.)
2. Burlington Northern RR Co. v. Brotherhood of Maintenance of
way Employees
a. SCOTUS (1987).
i. Union Brotherhood of RR workers in dispute in
Maine. Union pickets in Maine; none of the RR
employees will work; union begins to picket
everywhere all over the country (this is secondary
boycott. )
ii. RR wants court to narrowly interpret 13c to
employer-employee.
iii. Court rejects: Norris-LaGuardia doesn’t distinguish
between primary & secondary boycotts with
neutrals; “the judge made law of the late 19th &
early 20th centuries was based on self-msemerized
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views of economic and social theory…and on
statutory misconstruction.”
III.
The NLRA or WAGNER ACT (1935)
a. Enacted in the heart of the Depression; culmination of a long period of
development including enactment in 1926 of the Railway Labor Act.
i. Later amendments:
1. Taft-Hartley Act (1947
2. Landrum-Griffin (1959)
b. Structurally a New Deal Solution
i. Administrative Agency
ii. 5 member board.
c. Ringing declaration of policy in Section 1.
i. The denial by employers of the right of employees to organize and the
refusal by employers to accept the procedures of collective
bargaining….the inequality of bargaining power between employees who
do not possess full freedom of association or actual liberty of contract and
employers…tends to aggravate recurrent business depressions, by
depressing wage rates and the purchasing power of wage earners in
industry and by preventing the stabilization of competitive wage rates and
working conditions within and between industries.
d. Sec. 7: Beating heart of NLRA: Right to organize.
i. Employees have the right to self-organize, to form, join, or assist labor
organizations, ot bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining (strikes, boycotts – even applies to non-union shops)
or other mutual aid or protection.
e. Sec. 8: Employer unfair labor practices.
i. 8(a)(1): ER can’t interfere, restrain, or coerce EEs with their exercise of §7
rights.
ii. 8(a)(2): ER can’t dominate or interfere with formation or administration of
unions (outlawing company unions).
iii. 8(a)(3): ER can’t discriminate against union members or discourage
membership in the unions.
1. After Taft-Hartley, can’t encourage, either. EE has the right to not
be in the union.
iv. 8(a)(4): ER can’t discharge or discriminate against EE b/c he filed charges
or gave testimony under the act.
v. 8(a)(5): ER can’t refuse to bargain collectively with EE reps.
f. Sec. 9: How union becomes certified.
g. Sec. 10: Remedies
IV.
The Right to Organize:
a. And under Taft-Hartley, there’s also a right to not organize.
b. ER interference with organization:
i. What ERs can restrict with policies:
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1. Republic Aviation:
a. SCOTUS, 1945: ER had general rule against soliciation;
EE discharged for passing out union applications during
lunch, and three EEs discharged for wearing union steward
badges.
i. SCOTUS: Rules that bar union solicitation on EE’s
own time (not under working hours) or wearing
badges are presumptively invalid.
ii. ER can ban activity during working hours UNLESS
the rule had a discriminatory purpose.
iii. Working hours = from beginning to end of day,
including lunches.
2. Beth Israel:
a. Hospital rule barring solicitation or distribution of literature
by EEs in patient care and other work areas was violation
of 8(a)(1) and (3) in reference to areas like cafeteria and
coffee shop. Would have been OK in areas like the
patient’s room. Requires showing that disruption to patient
care would result if solicitation occurred.
3. Lechmere:
a. SCOTUS, 1992
b. Court holds the ER’s property rights trump the union’s
right to organize the EEs. [Thomas points out that the
NLRA confers rights on EEs, not on unions or non-EE
organizers.]
c. ER can completely prohibit solicitation and distribution by
non-EEs, except in rare circumstances. (If no reasonable
access to the EEs, then court could engage in balancing
analysis.)
i. Applies to parking lots that are open to anyone else
in the world.
4. A practical response to Lechmere:
a. Using salts to “salt” the workforce with union people.
Then organization is being done by EEs. [Salts were
approved by the Clinton board.]
ii. Excelsior Rule:
1. ER must provide list to NLRB Regional Director w/in 7 days or
consent/election agreement or direction of election. Excelsior list
contains list of all EEs and addresses. (If not provided, will be set
aside and new election ordered.)
iii. What ERs can say to EEs:
1. On the lookout for things which interfere with the “laboratory
conditions” NLRB seeks for elections.
2. Anti-union speeches:
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a. ERs assemble EEs for antiunion speeches.
b. Under NLRB v. United Steelworkers, ER’s denial of equal
time to the union isn’t a ULP.
i. Denial of equal time is presumed lawful; the burden
is on the GC to demonstrate the union is “seriously
incapacitated” from communicating with EEs by
any other means.
ii. The “alternative means” then becomes the big issue.
c. Peerless Plywood Rule:
i. Ban on captive audience speeches on company time
within the 24-hour period prior to the election.
ii. Has an “unwholesome and unsettling effect.”
- Easily subverted; only addresses oral
speeches, only in 24 hours (24.5 hours
would be fine).
- Propaganda, pamphlets  those OK, as
would be voluntary attendance.
3. ER threats:
a. 8(c): expressing of views, argument, or opinion or
dissemination thereof, whether in written, printed, graphic
visual form, shall not constitute or be evidence of a ULP
under any of the provisions of the Act if such expression
contains no threat of reprisal or force or promise of
benefits.
i. Conflicting policies: freedom of expression vs.
freedom of EEs to form, join, and assist EE unions.
ii. Learned Hand: “Words are not pebbles in alien
juxtaposition; they have only a communal
existence, and not only does the meaning of each
interpenetrate the other, but all in their aggregate
take their purport from the setting in which they are
used.” Or: it’s context.
b. Gissel Packing Co.
i. ER can tell only what he reasonably believes will be
the likely economic consequences of unionization
that are OUTSIDE of his control, and not threats of
economic reprisal.
ii. Opinions: may freely communicate any opinion
about unions so long as ER doesn’t make threat of
reprisal or force or promise of benefit.
iii. May make predictions about what unions might do
to the company BUT MUST BE BASED ON
OBJECTIVE FACTS to convey belief as to
demonstrably probable consequences beyond
control, or to convey management decision already
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arrived at (would close union if organized, etc). p.
151.
c. Gissel caused problems.
i. Imprecise test, gives incentive to unions to argue
and incentive to ERs to skirt the edge of Gissel.
4. ER Lies:
a. Dangerous because can’t be remedied – only can seek a
new election by declaring the old election invalid.
Working with Sec. 9.
b. Midland National Life Insurance Co.
i. ER put literature in the paychecks with substantial
misrepresentation of facts – distributed just hours
before the election.
ii. Board (Reagan Board) won’t probe truth or
falsehood. Will not set aside election based on
misleading information.
iii. Only one way to intervene: there is an exception for
forgery.
5. ER inflammatory Appeals:
a. Appeal to racism or hostility to foreigners
i. Sewell Mfg. (1962): ER represented that unions
were in favor of racial integration.
ii. Board: has the responsibility to ensure voters have
opportunity to exercise “reasoned, untrammeled”
choice.
iii. SOME statements with racial overtones might be
OK, if temperate in tone, germane, and factually
correct; EEs have right to know.
iv. BURDEN: on the party making use of racial
message to show it was truthful and germane.
- When there is doubt, it will be resolved
against him.
b. For statements meant to inflame electorate for union
election that aren’t lies or threats:
i. Statutory answer is that these aren’t ULPs.
ii. Use §9 to reglate “fair laboratory conditions of
elections.”
6. ER Polling EEs:
a. Struksnes Construction Co.
i. 8(a)(1) violation – but no remedy b/c no one had
been at that job site for 3 years. Also, poll was
valid under old rule.
ii. Struksnes manager solicited signatures of the people
who wanted him to deal with the bargaining unit –
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and didn’t get a majority. (One on one
confrontation.)
iii. Court articulates factors that would make polling
legit:
- Purpose of the poll is to determine the truth
of a union’s claim of majority
- This purpose is communicated to the EEs
- Assurances against reprisal are given
- EEs are polled by secret ballot
- The ER has not engaged in ULPs or
otherwise created coercive atmosphere.
7. ERs awarding benefits:
a. Not per se unlawful, but it’s a violation of the act unless the
time of the benefit was determined by something besides
the upcoming election.
b. Promise of FUTURE benefit excluded in 8(c). ER must
maintain the status quo during election.
c. Exchange Parts:
i. SCOTUS, 1964
ii. “Union can’t put these things in your envelope –
only the Company can do that.”
iii. NLRB: announcement & grant of benefits showed
intent to induce vote against the union. Suggsetion
of the fist in the velvet glove.
iv. SCOTUS affirms: 8(a)(1) also prohibits favors to
EEs designed to mess with the EE’s free choice in
the upcoming election.
c. Union Misconduct
i. Savair: can’t waive initiation fees for those who sign union slips.
1. SCOTUS: “by permitting union to offer to waive initiation fees for
EEs to sign recognition slips before the election, the boar allows
the union to buy endorsements and paint a false portrat of EE
support.”
2. Also, ominous to those EEs who didn’t sign the slips.
3. After this case, unions started waiving ALL initiation fees for new
bargaining units. (Waivers for all EEs are legit, if they can join
before AND after the election.)
ii. Union can’t restrain or coerce EEs in exercise of their §7 rights.
1. 8(b)(4): outlaws secondary boycotts, etc. (See below).
iii. Board generally won’t set aside an election if UNION promised better
wages, etc., that are outside its power. But if something is in the union’s
power to give, the Board will interfere.
d. Company Unions:
i. Outlawed in 8(a)(2).
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1. History behind Wagner Act: company unions were considered the
main threat to collective bargaining.
2. Prohibition is pretty broad: ER can’t “Dominate or interfere with
the formation or administration of any labor organization or
contribute financial or other support to it…”
a. Need to determine what a labor organization is to find a
violation.
b. Look to §2(5): “any organization of any kind, or any
agency or EE representation committee or plan, in which
EEs participate and which exists for the purpose, in whole
or in part, of dealing with the ER concerning grievances,
labor disputes, wages, rates of pay, hours of employment or
conditions of work…”
c. Consequence of this broad language:
i. Many ER attempts to create EE input devices are
illegal.
ii. Enshrined in 8(a)(2) in policy of ER neutrality with
more than one union. (Midwest Piping Doctrine:
when there was a question regarding representation
– multiple unions – the MP Doctrine was triggered
and ER couldn’t take sides.)
ii. Permissible:
1. Committee that shares info, brainstorms, acts as suggestion box, or
plans educational programs doesn’t violate the statute IF it’s
majority rule and has other functions besides making suggestions
to management.
a. Management could participate IF its representatives don’t
have veto power.
b. Obviously, can’t act like labor organization.
iii. Electromation, Inc.
1. 7th Circuit, 1994
2. no existing union at Electromation, so this case applies to all nonunion shops.
3. Problems:
a. Management decided how committees would be formed,
how decisions would be made, what the committees would
be discussing.
b. ER drafted policy goals, determined number of EEs on the
committees, made manager the coordinator of the
committees. EEs were paid for time at meetings; ER had
final say.
iv. Legal Analysis to find unlawful domination:
1. First, must find a “labor organization” under 2(5):
a. EEs participate
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b. Organization exists, at least in part, for the purpose of
dealing with the ER
c. Dealings concern “conditions of work” or other statutory
subjects (grievances, labor disputes, wages, rates of pay, or
hours of employment)
d. If org. has the purpose of representing the EEs, it’s a labor
org.
2. Domination:
a. Formation, structure, membership, financial support (eg, if
paid for time)
b. In the case, wouldn’t be a violation if just for quality,
efficiency, or communication device.
v. Remedy:
1. Cease & desist.
2. Come up with new plan that doesn’t run afoul of prohibition.
3. Just a slap on the wrist, and besides, NLRB probably wouldn’t
prosecute.
4. The client is allowed to know that the law doesn’t have any teeth!
e. Claims of Majority Status
i. ER can’t interfere or assist with creation or running of union. The danger
is that ER and union could become sweethearts.
ii. If union says it has the majority of EEs behind it, ER has three options:
1. Recognize the union
2. File petition for election
3. Wait for union to file petition for election.
iii. ER can’t recognize a union that doesn’t have the majority of support!
1. Brukner Nursing Home
a. SCOTUS, 1961: ER violated 8(a)(2) in supporting a labor
union; unlawful to support union without majority b/c it
gives advantage over other unions.
b. New rule is a bright-line rule.
i. Case by case factual analysis, however.
ii. Different for organizing campaign vs. existing
union.
c. Good faith belief in union’s majority isn’t enough.
Recognition has to be withheld until Board conducts
election.
d. ER’s good-faith acceptance/rejection can be challenged in
ULP proceeding.
e. Remedy is only “remedial order.”
V.
NLRB Jurisdiction & Procedure:
a. ERs covered
i. §2(2) – (3)
1. Excludes: US or State EEs, anyone subject to Railway Labor Act
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a. SCOTUS has excluded Roman Catholic secondary schools.
b. Kennedy gave federal EEs the right to organize in EO.
Still, not under NLRA but their own labor relations
authority. Can’t strike, slow down, picket agencies if
interferes with agency operations.
2. (3) excludes farm workers, domestics, employed by parent or
spouse, independent contractors (since not EEs), supervisors (b/c
they can hire and fire, have independent judgment), contractors.
ii. Supposed to cover businesses that affect interstate commerce, but b/c of
lack of funding, had to be limited. Board established standards about
whom the NLRA covers.
1. Retail doing $500,000 or more
2. Non-retail doing more than $50,000
3. “instrumentalities, links and channels of interstate commerce” (like
trucking companies) doing more than $50,000.
4. Public utilities with at least $250,000 more (or qualify under
jurisdictional standard for non-retail firms)
5. Transit systems (other than taxis, which are retail) doing more than
$250,000.
6. Newspapers & Communications systems; radio, TV, Telegraph &
Telephone doing more than $100,000. Newspapers doing more
than $200,000.
7. National defense; “firms having substantial impact on national
defense”
8. Proprietary & non-profit Hospitals – with gross annual revenue of
at least $250,000.
9. Law Firms & Legal Assistance: with gross annual revenue of at
least $250,000.
10. NOTE: even if not covered under NLRA, might be covered by a
state’s “little” NLRA!
b. NLRB Procedure:
i. Two types of cases:
1. C cases (unfair labor practice cases – have C in front of number)
a. ULP case procedure:
i. Any person (EE, union, ER) can file; must be
within 6 months.
ii. Filed with the Regional Office.
- ULP charge takes months to process:
A. 90% resolved by the regional
director by negotiated settlement or
dismissal.
B. If RD doesn’t process, can appeal to
General Counsel.
i. At this point, no recourse if
refuses to pursue. No appeals
to the court.
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iii. If prosecuted then takes six months to a year more
to get a hearing.
- Complaint is now called a complaint, not a
charge.
- ALJ has hearing, with right to call/subpoena
witnesses and right to cross examine.
iv. ALJ’s decision is called a Recommended Order.
- This can be appealed to NLRB in
Washington DC
v. NLRB review can take six months to a year more.
- NLRB’s review is de novo, including facts.
(But likely to give weight to ALJ’s
findings).
- Will make findings of fact and conclusions
of law.
- Another delay as their decision is written.
vi. Can appeal to Circuit Courts of Appeal – more
months to years of delay.
- OR NLRB could file petition to enforce.
(NLRB has no civil contempt power until
court of appeal decides to enforce.)
2. R cases: Representation cases (have R in front):
a. Where the issue is who is or should be representative?
b. Cases can arise in four ways.
i. When EEs or union file petition for respsenation
rights.
- Must be supported with showing of interest
from 30% of EEs. Via cards.
A. Most unions prefer to have 75%
before they file.
ii. ER requests election.
iii. Rival union petitions to intervene and get on the
ballot with 10% of interest.
iv. Petition to decertify the union:
- Again, requires showing of interest from
30%.
- Limited to window period before expiration
of collective bargaining agreement.
c. Issues that come up in R cases:
i. Whether NLRA applies (jurisdiction).
- ER may assert that they’re not covered.
ii. Appropriateness of the bargaining unit.
- Defining the electorate – what is the
appropriate group. EEs at one situs vs. EEs
at all areas.
iii. Eligibility of a particular voter:
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Supervisor, or oddball groups of EEs that
don’t seem right for the bargaining unit.
A. Such as confidential secretary.
iv. Appropriate timeliness of the petition.
d. Ultimate decider in the R cases:
i. File with RD – RD conducts elelctions and holds
hearing.
- After the election, objections may be filed
w/in 5 day period.
- OR can file ULP alleging coercion, etc.
Remedy is new election.
ii. If there is an objection filed or challenge is through
ULP, then appeal is to the NLRB.
- However, the parties may have stipulated to
wait their right to appeal to the NLRB.
3. Interlocutory relief is possible:
a. 10(j): board can petition courts to seek TROs.
i. But this happens very rarely; everyone believes
there ought to be more 10(j) injunctions, but aren’t
enough resources.
ii. Judicial Review:
1. On findings of fact, review standard is supported by substantial
evidence on the record as a whole (altered by Taft-Hartley).
a. Ct looks at entire record to determine if there’s adequate
evidence. Standard is “substantial evidence supporting the
decision when viewed in the light of the entire record.” It’s
substantial when a reasonable mind might accept it as
adequate to support a conclusion.
2. On findings of law, ct gives Chevron deference
a. Looks at the board’s decision and ask:
i. Is there a statute speaking to the precise question at
issue?
ii. Check in study aid.
-
VI.
ER Coercion & Discrimination:
a. Generally:
i. in discrimination cases, 8(a)(1) Is always a charge to make: if others are
violated, so is 8(a)(1). Why?
1. Union membership includes membership activity.
2. Union membership has been given a special case law gloss.
ii. Most cases are brought under 8(a)(3) with 8(a)(1) as derivative charge.
1. 8(a)(3): prohibits ER from discriminating against EEs for union
activity.
2. Requires there be proof that discharge or lesser discipline was
product of anti-union animus. (8(a)(1) doesn’t require an antiunion motive!)
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a. Doesn’t matter if it just SEEMS unjust. Must have motive.
i. ????Highly favorable to P.
- GC has burden to show union activity was
ONE of the substantial motivating factors in
the firing.
- If ER can’t rebut, can assert affirmative
defense that would have been substantial
motivating factor. (this can be total
defense.)
3. Mixed-motive or pretext cases:
a. Pretext case: ER asserts a valid business reason for action
but evidence shows that the reason is a sham, or that he
didn’t really rely on it.
b. Mixed motive case: two factors. Demonstrable &
legitimate business reason AND ER’s hostile feelings
toward EE’s union activity. Heavy burden shifted to ER.
i. GC establishes his case by proving existence of
protected activity, knowledge of that activity by the
ER, and anti-union animus.
- This raises an inference that the EE’s
protected conduct was motivating factor in
discharge/discipline. Act violated.
ii. ER can rebut with evidence showing that there was
no prohibited motive.
- If can’t, then ER must show that discharge
would have happened for legit reasons
regardless of protected activities.
- ER has burden of production and
persuasion. Must show by preponderance of
the evidence that discharge was due to EE’s
unprotected conduct.
b. Discrimination:
i. Remedy for 8(a)(3) violation: reinstatement & backpay, offset by other
earnings; additionally mitigation doctrine could reduce allowance.
1. BUT, no backpay for illegal workers. (recent change)
ii. Edward G. Budd Mfg. Co. v. NLRB:
1. 3rd Circuit (1943): EEs had company association, treated reps with
incredible deference. UAW started to organize shop and lost;
union filed charges b/c of unlawful discharge of two EEs. One
was REALLY bad. BUT NLRB orders reinstatement and Ct of
App. found it was ER dominated association.
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a. ER may discharge EE for good reason or a bad reason, or
no reason IF it doesn’t violate the NLRA. Here it was
obvious discharge was b/c of union activity.
b. ER never acted on just cause reasons.
iii. Adkins Transfer:
1. 6th Circuit (1955): when mechanics joined union, ER closed down
aspect of their operations rather than pay union scale.
a. Court: no discrimination here – b/c no discouragement to
join the union! ER has every right to suspend operations or
change business methods if not motivated by an illegal
intention to avoid obligations under the NLRA. Fact that
EEs belonged to union was entirely incidental.
iv. Darlington Mfg. Co.
1. SCOTUS (1965): after one mill organized, ER shut it down.
(nominally a one-mill company, but owned by umbrella of
Milliken family).
2. Unlawful to shut down business operation with anti-union animus
IF:
a. Persons controlling the closing business can control other
entities under the corporate umbrella and
b. Company closes show to discourage unionizing elsewhere
and
c. It was reasonably foreseeable to ER that EEs in the other
shops would fear their shops would also be shut down if
they organized.
c. Remedies for ER Coercion & Discrimination:
i. Primarily Reinstatement & Backpay awards.
1. Reinstatement isn’t very effective – most EEs don’t want to go
back and fear reprisal.
2. Other forms of discrimination result in money damages.
3. Board thinks these remedies are effective b/c they resolve most
charges before filing complaint. (But there’s not much motive for
EE to litigate!)
4. Also, if you vote for the union, there’s a chance you’ll get fired of
3-5%.
ii. Gissel Bargaining Order:
1. Not very practical.
iii. NLRB being creative:
1. Posting usual notices.
2. Mail copies of notices to each EE
3. Convening all EEs during working time and having official read
the notice.
4. Giving union access to the plants for a year to use ER bulletin
boards where EEs can read notices.
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5. Allow union organizers to have access to ER parking lots and other
nonworking areas.
6. Give union rep right to address workers on the floor
7. Furnishing the union a list of EE names and addresses
8. Reimbursing NLRB for litigation expenses, including salary of
attys
VII.
Selecting Bargaining Representatives
a. Generally:
i. §9
ii. Where most of the disputes between union & ER take place.
iii. Technically not an adversarial process – just truth-seeking process where
the parties try to assist the board.
iv. ER can’t interfere or assist with formation or decertification of a union.
1. ER commits ULP when recognizes union as rep when union
doesn’t have a majority.
2. ER can file for election as a shield against the crossfire of two
competing unions or when someone presents a claim for
recognition.
b. Ways to Recognition:
i. Voluntary recognition by ER (rare)
ii. NLRB orders ER to bargain as a remedy for a seriously coercive or
discriminatory ULP.
iii. Multiple ER bargaining units
iv. However, usually when election takes place.
c. Election Process:
i. Submission of petition to RD.
1. Potential issues for RD to determine right away:
a. Adequate showing of interest
b. Blocking charge
i. R case (the election) held in abeyance while
blocking charge case (ULP) is resolved. (b/c it
might pollute the election.)
c. Certification bar (1 year)
i. No election if there’s been one in the past year.
d. Election bar (1 year)
i. If election held and union lost, there might be a year
long election bar. It’s a settled issue for a year.
ii. Policy: free choice of the EEs to decide to organize
and the stability of labor relations.
e. Contract bar (3 years):
i. This is very significant.
ii. If there’s been a selection of a representative and
contract has been reached, don’t want to upset the
stability by a rival coming in.
iii. During period of the K – 3 years is the max.
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iv. Window period from 60-90 days prior to the
expiration of the K. (30 day period). Periodic
opportunity for the EEs to exercise free choice
rights.
v. Exceptions to contract bar:
- Unlawful provisions (closed shop,
descrimination)
- Defunctness: union is unable or unwilling to
represent EEs in the unit.
- Schism: local union separates from national
- Changed circumstances: ER’s changes call
into question appropriatness of bargaining
unit.
vi. Premature extension doctrine: if K is extended
during the term, new K won’t bar election if the
rival petition is filed in a timely manner.
ii. Petition is processed & set for a hearing.
1. Can happen by agreeing on a hearing, or asserting rights to a
hearing. Could take a couple of months to get.
2. Issues to decide:
a. Appropriateness of the bargaining unit. Huge issue.
i. Look at 9(b): three restrictions.
- Craft EEs have right to be represented
separately.
- Professional and nonprofessional EEs are
prohibited from being grouped together in a
single unit unless majority of professional
EEs agree to it.
- Guards and non-guards can’t be in same
unit.
ii. Determined on case by case basis; Factors to
consider:
- similarity in scale and manner of earnings
- similarity in employment
- similarity in kind of work performed
- similarity in qualifications, skills, training
- frequency of contact or interchange
- geographic proximity
- continuity or integration of production
process
- common supervision and determination of
labor relations policy
- history of collective bargaining
- desires of affected EEs
- extent of union organization
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iii. unions prefer smaller BU b/c easier to organize.
ERs prefer larger BU.
iv. American Hospital Assn v. NLRB
- SCOTUS (1991): board has standard for
hospitals – 8 appropriate units. Rare for
board to adopt this in advance, but SCOTUS
says OK.
b. Who can vote for the union:
i. Issue may or may not be determined before the
election.
ii. Issues to resolve at hearing:
- Supervisors, not supervisors.
A. Supervisors can be fired for union
activity without recourse. 2(11) list
elements of what makes someone a
supervisor. P. 79 of supplement.
- Union getting names and addresses of EEs
in the unit.
- Date and time of the election
- Manner of the election
iii. Outcome of hearing may be a consent agreement:
- Consent Election Agreement or
- Stipulation for Consent Eleection
A. Allows for right to appeal RD’s
decision to the NLRB.
d. Multi-ER Bargaining Units:
i. Independent ERs have joined together in order to bargain with a single
union representing EEs at the ER locations.
1. More power to small ERs.
2. Good for industries with short term employment. (construction)
3. Sign one agreement.
ii. Charles D. Bonanno:
1. When ER joins multi-ER unit and bargains with union, ER can’t
unilaterally withdraw from the union.
2. A strike isn’t enough of an unusual circumstances to justify the
break with the BU.
iii. Problem:
1. Whipsaw strikes: focus on one ER, bring to knees, them move onto
the next. What’ll happen is that the ERs will ALL lock out EEs.
2. Union can’t force ER to join the unit with undue pressure. While
union could file a failure-to-bargain, the ER could file a ULP.
e. Coordinated Bargaining by Unions:
i. General Electric v. NLRB
1. 2nd Circuit (1969): IUE and other unions formed committee on CB;
tried to persuade ER to meet with them together. GE wouldn’t.
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when finally met, each union had reps from the other unions there.
GE refused to negotiate. Court:
a. GE plays the unions off each other; company didn’t
demonstrate “clear and present danger” to bargaining
process to overcome objections to reps chosen by the other
party.
b. IUE didn’t have ulterior motive; didn’t get locked in by the
other unions.
f. Gaining Bargaining Rights through ULPs:
i. Union can become bargaining rep if ER ULP is egregious enough; Board
has authority to issue bargaining order requiring ER to recognize the union
and bargain.
ii. Unions don’t like to go through hassle of elections.
iii. Gissel Packing Co.
1. SCOTUS (1969): Board can issue bargaining order requiring ER
to recognize union and bargain when ER commits ULP “which
have made the holding of a fair election unlikely or which have in
fact undermined a union’s majority and caused an election to be set
aside.”
2. Majority could be recognized with authorization cards – union
doesn’t have to be recognized to invoke duty to bargain.
a. Cumberland Shoe Doctrine: if allegations of
misrepresentations by union & misunderstanding of EEs
for purpose of the card: BUT statement on card is
unambiguous (as to getting the election and authorizing
union) then card will be counted unless EE specifically told
it would only be used for purpose of getting election.
3. BUT ER doesn’t have to recognize union based on cards unless he
has actual knowledge of union’s majority (could get this through
poll).
a. ER used to have good faith doubt in majority (Joy Silk
doctrine). It’s now irrelevant – issue is whether the ER’s
ULP interferened with the election process to preclue fair
election.
4. Gissel bargaining order only appropriate where union had
majority status or lost it via ER’s illegal threats. NOT if union
never had majority status. Otherwise, board is inserting own
choice of representative. Gourmet Foods.
iv. Post Gissel:
1. Unions always try to get Gissel remedy – win the ULP, and think
there’s a good chance the ULP destroyed chance for fair election.
2. BUT not frequently awarded, and when they are, they’re often
challenged.
v. Linden Lumber Div.
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1. SCOTUS (1974): Union with card majority has the obligation to
demand an election – unless ER has committed ULP to raise. ER
has absolute right to demand an election, but isn’t responsible for
filing the petition. Union has that burden.
g. Presumption of Continuing Majority Status:
i. The law favors the unions.
ii. Brooks v. NLRB:
1. SCOTUS, 1954: after union election, EEs told ER that the majority
didn’t want the union. ER refused to bargain with the union.
2. Court: ER can’t interfere with the EEs’ duly elected rep. If want to
get rid of union, must follow procedures.
3. Irrebuttable presumption for one year.
iii. After one year certification bar:
1. Presumption continues. Becomes rebuttable.
a. ER must show affirmatively that union doesn’t have
majority and ER’s refusal to bargain was based on good
faith and reasonable doubt of union’s majority status.
b. This presumption goes on forever – unions don’t have to
demonstrate any majority support. (Unions avoid
elections.)
c. Presumption is a rule of law that greatly diminishes EE
opportunities to exercise their free choice. Law still tilted
in favor of union.
iv. NLRB v. Curtis Matheson Scientific Inc.
1. SCOTUS (1990):
a. Union strikes, lockout. 5 of 27 EEs return to work. ER
hires permanent replacements.
b. Union files 8(a)(1) and 8(a)(5) ULPs.
c. ER: has good faith doubt that replacements don’t support
union.
d. Court: Board acted in its discretion in refusing to adopt a
presumption of replacement opposition to the union.
i. Don’t know for sure if replacement workers
wouldn’t support union.
ii. We’ll presume they do support it.
iii. Policy: if allows strike replacements to oppose uino,
gives ER not only the right to win a strike by hiring
replacements but also lets him get rid of the union.
2. Remedy is weak: cease and desist.
v. Allentown Mack Sales & Service v. NLRB
1. SCOTUS (1998): Forces change that comes to fruition in Levitz.
a. ER who believes union doesn’t have support of majority
has three options:
i. Request a formal election
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ii. Withdraw recognition and reufse to bargain (NLRB:
unfair)
iii. Conduct internal poll of EE support for union
(NLRB: unfair).
b. Asking people in job interviews is unfair!
i. Must keep in mind Struksnes Factors.
2. ER did have “good faith doubt” to justify the polling – “supported
by substantial evidence.” (Focuses interpretation on how board
looks at word “doubt”). Good faith disbelief.
a. Says board refused to pay attention to “credible” evidence
of small group of EEs – testimony was discounted. This
was at least probative. (!)
3. SCOTUS applies own evidence standard to come to conclusion.
Tells board to consider all the evidence – don’t set the rule out as
“good faith doubt.” People must know the doctrine.
vi. Levitz Furniture:
1. NLRB decision.
2. Board accepts critique and applies traditional standard
reinterpreted:
a. Where ER only has uncertainty, ER shouldn’t be justified
in withdrawing. Should be able to get election.
b. But for withdrawal, require ER to show that union has
actually lost its majority.
i. This eliminates the “good faith doubt” problem.
3. Polling issue still unsettled.
vii. Review problems on p. 360
VIII. Negotiation of the Collective Bargaining Agreement
a. Union is exclusive representative. §9(a).
i. Policy:
1. Congress opted for this system of exclusive representation to let
EEs speak with one, stronger voice.
2. Exclusivity implies it will define the bargaining unit in some way
other than membership.
3. (better for ERs to only have one union to negotiate with.)
ii. JI Case v. NLRB:
1. SCOTUS (1944):
a. Individual Ks may not be used to defeat or to delay
procedures of the NLRA. Nor can they be used to exclude
EEs from the union, or to forestall bargaiing or limit the
terms of the CBA.
b. While individual Ks aren’t forbidden by the act, they’re not
a waiver of NLRA rights. (But if you make side deal with
some EEs, then committing a ULP by bypassing the union.)
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iii.
iv.
v.
vi.
2. This case can really limit individual bargaining, but even if
employee Ks would give more, it’s hurting the union.
United Technologies:
1. ER can directly communicate with EEs in non-coercive manner
during bargaining. BUT direct communication that seeks to
undermine the union is violation of the act. (Also threats of
reprisals or promises of benefits.)
Emporium Capwell v. Western Addition Community Org.
1. SCOTUS, 1975
a. Black EEs bypassed grievance process established by union
and picketed – also wanted to talk directly with the
company president. Fired.
b. Not protected by §7 b/c bypassed the union – their
grievance should have been processed through union b/c
union had racial non-discrimination clause in the K.
c. Court: where EEs have union, the policy is majority rule.
i. But not a tyranny.
d. EEs can’t pursue claims outside of orderly union grievance
process.
e. Drummonds agrees with dissent: burden on the EEs is
heavy – believed EE activity was concerted. Would have
been protected if there hadn’t been a union.
Steele v. Louisville & Nashville R. Co.
1. SCOTUS, 1944
2. Case under Railway Labor Act. (RR & Airline workers)
3. Union colluded with ER to keep out blacks.
4. Duty to exercise fairly the union’s power without hostile
discrimination.
a. Must be fair, impartial, in good faith.
b. Union can negotiate for some EEs to be treated better than
others (like with seniority) but not for something that’s
irrelevant or invidious.
Ford Motor v. Huffman
1. SCOTUS, 1953
2. Applying duty of fair representation to NLRA. BUT Union has the
right to make “reasonable distinctions” among EEs. No one
expects everyone to be completely satisfied.
b. Duty to Bargain in Good Faith
i. §8(d): requires parties to meet at reasonable times, confer in good faith,
and if requested, to execute written agreement. Doesn’t compel either
party to agree to any proposal or to make concessions.
ii. This isn’t a simple-minded duty to bargain.
1. Bypass ULP is allegation of violation of 8(a)(5) or 8(b)(3): not
bargaining, or are bargaining with minority, or trying to bypass
bargaining. Failure to bargain charge.
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2. Process & procedures:
a. once bargain is struck, there’s duty to reduce to writing &
execute.
b. When have K, must give 60 day notice if want to change
terms (before it expires) or insist on any changes.
iii. Remedy for failure to bargain in good faith?
1. Order back to bargaining table.
2. SCOTUS has held the board lacks the power to order the ER or
union to sign a particular K term.
iv. Types of violations of duty to bargain in good faith:
1. Per Se Violations:
a. Aren’t based on good or bad faith – simply doing one of
these is a breach of the duty of good faith.
b. Information ULPs:
i. Union requests information and not given it –
Truitt.
- Show up when ER says can’t afford
concession, and union wants to look at the
books but ER won’t let them.
- What’s happened is that now things are very
carefully worded to not saying “can’t
afford” but saying “won’t be competitive.”
- Cutting back on Truitt: Detroit Edison:
SCOTUS said union request for ER aptitude
tests could be unreasonable – remands.
Rules of deference to board aren’t blank
check. Concerned about security.
c. Unilateral Change Doctrine:
i. Company implements change in working conditions
w/o exhausting the bargaining process first and
reaching impasse – Katz.
- Applies before K, while in force (if K
doesn’t deal with subject of the change) or
after the K expires.
d. Unlawful Economic Pressure
e. Insistence on bargaining on a non-mandatory issue.
i. EG, stenographer present at negotiation session.
2. Process Violations:
a. Stalling (not meeting at reasonable times)
b. These are hard to prove.
3. True “bad faith” bargaining:
a. More complicated to prove.
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v. NRLB v. A-1 King Size Sandwiches:
1. 11th Circuit:
2. if ER is merely going through the motions of negotiation and is
engaging only in surface bargaining, then party is engaged in
surface bargaining.
a. Must show bad faith through totality of the circumstances.
Hard to prove.
b. Try: admission, dilatory tactics, reversing position,
ridiculousness of proposals.
c. If show inflexible attitude, proposing things without
considering reasonable alternatives.
i. But hard bargaining is permitted from strong ER.
ii. Note: Zipper clause: there are things we haven’t
talked about and want clause to zip up over
anything else – zip up the duty to bargain.
vi. Economic Pressure during Negotiations:
1. NLRB v. Insurance Agents’ International Union:
a. SCOTUS, 1960
b. Lawful economic pressure.
c. EEs engaged in work slow-down, reporting late, didn’t
complete assignments, etc.
d. Nature of duty to bargain in good faith wasn’t sweepingly
conceived.
e. Use of economic pressure isn’t inconsistent with duty to
bargain in good faith. Board can’t determine which
economic weapons could be used by the parties – that
would be making the choice for the parties. [And this
activity wasn’t protected under 7.]
vii. Unilateral Change Doctrine:
1. Must bargain to impasse before instituting last best offer.
2. NLRB v. Katz
a. Unlawful economic pressure.
b. SCOTUS, 1962
c. Violation of the duty to bargain for ER to institute changes
regarding matters which are the subject of mandatory
bargaining. (Unilateral change doctrine.)
d. Applies even if the change would benefit EEs.
i. Frustrates objectives of act.
e. Key reasoning: p. 414.
3. Applies only when union is certified or bargaining, not when the
union is trying to get recognition.
4. But what are mandatory subjects:
a. Even vending machines or bulletin boards!
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5. Remedy for Unilateral Changes: ordering return to status quo ante,
make anyone whole who was adversely affected, and continue to
bargain in this area.
6. Duffy Tool & Stamping v. NLRB:
a. ER put no fault attendence policy in effect during
bargaining. Hadn’t yet reached impasse.
b. Ct of App: by removing issues from bargaining it made it
less likely for parties to find common ground. Signals to
EEs that union is only paper tiger.
7. McClatchy Newspapers Inc. v. NLRB
a. DC Circuit, 1997:
b. Parties deadlocked over wage terms; McC asserted it was
implementing its last offer; union filed ULP for violation of
duty to bargain in good faith.
c. BUT: not clear that it’s legit to implement last best offer
(let alone to craft exceptions!)
c. Subjects of Collective Bargaining
i. Categories of subjects: articulated in Borg case. p. 438
1. Mandatory
a. Determined in §8(d): wages, hours, and other terms and
conditions of employment.
b. Eg, drug testing of EEs, vending machines (depending on
facts), bulletin boards.
2. Permissive
a. Eg: Drug testing of applicants. Change over the bargaining
unit, procedure in negotiations, settlement of ULPs, union
label on product
b. It’s OK to propose this, but not to insist on it.
c. Companies are free to make unilateral changes here.
3. Illegal
a. Proposals for closed shop, proposed discrimination.
ii. Determining categories is tricky.
1. Whether workers could be entitled to participate in discussion
about the business beyond what’s in the act is currently a hot topic.
2. Two settled rules:
a. Duty to bargain extends to each and every subject in
statutory phrase. ULP for ER or Union to refuse to bargain
about those.
b. There are other subject that are outside of the phrase
“wages, hours, and other conditions” which aren’t
statutory…no duty to bargain on those subjects, and could
be ULP (per se) to insist on it.
iii. NLRB v. American National Insurance
1. SCOTUS, 1952
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2. Not unlawful to insist on management functions clause or to
implement it after extended conflict with the union.
3. So long as the ER bargains over everything else, Mgmt rights
clause is mandatory, and can insist on it down to impasse.
iv. NLRB v. Wooster Division of Borg-Warner Corp.
1. SCOTUS, 1958
2. Establishes rule that can’t insist on non-mandatory topics. It’s a
refusal to bargain about the subjects that are IN the scope of
mandatory bargaining.
3. 10-18, p. 11
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